IN THE MATTER OF THE ESTATE OF SIEGFRIED ERICH KUNZ, deceased

COURT FILE NO.: 05-177/17 DATE: 2018-06-12 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: RUTH EISSMANN and MATTHIAS DUENSING, Applicants AND: PETRA KUNTZ, A.K.A. PETRA KUNZ, WOLFGANG KUNZ, GERD EISSMANN, BERND EISSMAN, RUDIGER EISSMANN, STEFFI EISSMAN, SABINE EISSMANN, BIRGIT EISSMANN, RONNY EISSMANN, TANJA EISSMANN, JACKY EISSMAN, a.k.a. JACQUELINE THUMMLER, SANDRA EISSMANN, KATRIN EISSMANN and RICO EISSMANN, Respondents

BEFORE: S.F. Dunphy J.

COUNSEL: Daniel Walker, for Applicant Ruth Eissmann Paul Dollak, for Applicant Matthias Duensing Sylvia Jacob, for Respondent Petra Kuntz

HEARD at Toronto: June 11, 2018

REASONS FOR DECISION

[1] Mr. Siegfried Kunz was born in Germany on December 20, 1937, emigrated to Canada in or about 1967 and died in Toronto on February 1, 2016. He left no fewer than four potential wills, no relatives in Canada and some confusion that will need time to be sorted out.

[2] This motion came on as a motion for directions brought within an application seeking the appointment of an estate trustee with a will.

[3] The application was brought by or with the consent of all of the next of kin of Mr. Kunz save and except his daughter Petra Kuntz[^1] from whom he was estranged at the time of his death.

Factual background

(a) The Kunz family

[4] I shall first describe Mr. Kunz’ family situation and then the various competing wills he left behind.

[5] Mr. Kunz married Ingrid Schutte in Germany in 1961. The couple had a child, Petra Kuntz born in 1962. They were divorced on February 14, 1967. Soon afterwards, Mr. Kuntz emigrated to Canada. He paid some support but largely lost touch with his daughter for a number of years. He did not re-marry and had no spouse or other issue up to the time of his death.

[6] Mr. Kunz returned to Germany on several occasions between 1980 and 1988 where he attempted to re-forge a relationship with his daughter. The attempt was not altogether successful. The reasons are not material. They had a falling out and Petra neither saw nor heard from her father again after about 1988-1989 (the precise time is also not material).

[7] Mr. Kunz had a sister (the applicant Ruth Eissmann) and a half-brother (the respondent Wolfgang Kunz). Ruth also has three sons who, along with their respective wives and children are the other respondents to this application and named beneficiaries in one of his wells.

[8] At about the time his relationship with his daughter definitively foundered, another door opened for Siegfried after the fall of the Berlin wall. Mr. Kunz was re-united with his family in the former East Germany and, over the years, forged close ties with them. He visited them frequently.

[9] When Mr. Kunz died, he had no family in Canada. Police eventually located his sister Ruth in Germany and notified her. She is now 90 years old. Ruth hired the applicant Matthias Duensing to represent her in looking after her deceased brother’s affairs. Access to the apartment was gained. A number of testamentary documents were found, none of which names an executor. These are described below.

[10] The documents also referenced a daughter of Mr. Kunz named Petra. It took time for Mr. Duensing to locate her but this was eventually done. This application was launched by him at the request of Ruth (with the consent of her family) and on notice to Petra to name him as administrator of the estate with a will and to obtain directions as to which of the potential wills ought to govern. The motion before me was limited to directions on the latter subject.

(b) The testamentary documents

[11] The first will in contention was made on January 8, 1967 before a notary in Germany. This will divided Mr. Kunz’ estate between his wife and daughter. This will preceded Mr. Kunz’s divorce and emigration to Canada.

[12] On October 26, 1982, Mr. Kunz wrote and signed what was self-evidently a testamentary document entirely in his own hand. The document, written mostly in English, referenced his “public will” of January 1, 1967 and provided “the beneficiary after my death is Petra Sonja Kuntz”. In 1982, Mr. Kunz was resident in Toronto.

[13] On July 15, 2000 Mr. Kunz drew up entirely in his own hand what is clearly intended to be a will. The document was written entirely in German but the translation is not disputed by any party. The first sentence reads “I, Siegfried Erich Kunz….wish to amend my will which was drawn up on January 9, 1967”. After directing his cremation and asserting the lack of any debts, the document provides “the following individuals are eligible as heirs to my estate”, listing in seven separate paragraphs the persons and bequests he wished to make. The last sentence reads “this will was written without involving any witnesses and I have affixed my signature below”.

[14] The specific bequests in the first five numbered paragraphs of this document were physically altered by overwriting upon them. Whereas the will document (the original was filed in court and made an exhibit at the hearing) was written in black ink, the various overwritten alterations were made in blue ink. None of the alterations were signed or initialed. No signed memorandum referencing them appears at the end of the document. From their content, it would appear that these alterations were made after December 9, 2008. A bequest to Mr. Kuntz’ brother-in-law was annotated in the same blue ink to note that he was deceased. That event did not occur until December 9, 2008.

[15] The following are the apparent variations made on the face of the document (by comparison to the still legible original dispositions):

a. Ruth: change from €40,000 to €100,000;

b. Nephews:

i. Gerd Eissmann from €30,000 to €100,000;

ii. Bernd Eissmann from €30,000 to €100,000;

iii. Rudiger Eissmann from €30,000 to €100,000;

c. Wives of Nephews:

i. Steffi Eissmann from €3,000 to €50,000;

ii. Sabine Eissmann from €3,000 to €50,000;

iii. Birgid Eissmann from €3,000 to €50,000;

d. Grandchildren of Ruth (Ronny, Tanya, Jacky, Sandra, Katrin and Rico[^2]) each €2,000 changed to €20,000.

[16] Paragraph 6 reads “the balance of my estate shall go to my daughter Petra Sonja Kuntz even though she [illegible] me”.

[17] Paragraph 7 contains a request to divide his gold and silver coins equally among Ruth and the three nephews. No gold or silver coins have yet been located.

[18] On November 25, 2003, Mr. Kunz wrote to the law firm before whom he had made the 1967 will. He requested the return of his will and stated “the will is invalid”. The letter was entirely in his own hand and signed by him. He attached a copy of the will with a diagonal line across each page and “invalid” written by hand. When the law firm confirmed to him that, by reason of the handwritten direction, the 1967 will was no longer effective but required him to pay a tax to have its return registered, he made no further reply.

[19] The last testamentary document in evidence is dated August 25, 2009. This document was also drawn up in Mr. Kunz’ own hand and in German. It reads in its operative parts (as per the agreed translation):

Estate of Siegfried Kunz, born in Burkesdorf on December 20, 1937.

Petra Kuntz nee Kunz (January 16, 1962) of Bielefeld may not receive a single Euro out of my estate.

On 6.9.1988 she stole my gold and silver coins, worth €50,000, out of my safe at the Dresdner Bank. Furthermore, she received DM 25,000 between the ages of 18 and 24.

[20] Once again, this document shows signs of subsequent alteration. On the side, written in blue ink is “amendment to my will dated July 15, 2000”. The 2009 document and the 2000 documents were stored together in an envelope kept in Mr. Kunz’ Toronto apartment and found there after his death.

Issues to be decided

[21] The parties asked me to provide directions as to which will governs. It is agreed that Mr. Kuntz died resident in Toronto although he remained a German citizen at the time of his death. It is also agreed that, to the extent material, German law and Ontario law are materially identical as regards holograph wills.

Analysis and discussion

[22] I shall proceed by examining each will, starting with the oldest.

[23] All parties agreed that the 1967 will is no longer in force. I agree. Mr. Kunz prepared a subsequent will in 1982 which will, being signed by him and entirely in his own hand, satisfied the requirements of s. 6 of the SLRA. He was resident in Ontario when he made the 1982 will. The making of a will operates to revoke a prior will: s. 15(b) of the SLRA. The 1967 will has not been revived.

[24] I find that the 1967 will has been entirely revoked and is of no further force or effect.

[25] Although the 1982 will satisfied all of the requirements for making a valid will under s. 6 of the SLRA, it too was revoked by the making of a subsequent will (being the will of July 15, 2000 discussed below): s. 15(b) SLRA. This will has not been revived.

[26] The 1982 will has thus been entirely revoked and is of no further force or effect.

[27] The July 15, 2000 will was also made entirely in the hand of the testator, was signed by him and was clearly made with testamentary intent. That testamentary intent is evident not only from the text of the document but from the context in which it was found. It was not crossed out or destroyed by was found in the apartment of the testator after his death in an envelope along with a copy of the 2009 document referred to below. It was a valid holograph will: s. 6 SLRA.

[28] There were alterations made on the face of the 2000 will. These were made in a different ink and, by their context, appear to date from after 2008. They were all in the direction of increasing – and substantially – the bequests made to Ruth and her family. Section 18 of the SLRA is clear that no effect can be given to the increased bequests suggested by the alterations. The alterations are not signed either in the margin or via an end note referencing them.

[29] I have considered whether, if the alterations cannot be given positive effect they may nevertheless operate in a negative fashion to invalidate the gifts originally made in the portions of the will so altered. In my view they do not.

[30] Section 18(1) of the SLRA provides that alterations not made in accordance with Part 1 of the Act have “no force or effect except to invalidate words or the effect of the will that it renders no longer apparent”. Each of the subject alterations would have had the effect of increasing the relevant bequests to the beneficiary relative to the bequests originally made and still legible beneath the ink. An invalid attempt to increase a gift evinces no settled intention to invalidate it. My task in construing a will is not to seek means of defeating the intentions of the testator by stretching to apply technicalities but to construe the meaning as fairly and reasonably as can be done bearing in mind the nature of the instrument. This particular document is a holograph will - a will made, it should be recalled “without formality” pursuant to s. 6 of the SLRA. While the requirements of s. 18 may invalidate an inexpert attempt to increase a particular gift, I cannot invalidate the original (smaller) gift only because of that fact absent some reasonable basis to conclude that such would conforms to the intention of the testator.

[31] The alterations have not rendered the effect of the will no longer apparent. The text can be read – with some difficulty it is true, but readily enough (particularly with the original document in hand). All of the parties concurred as to the reading of the original text. The original intent to benefit the named individuals is manifest as is the original amount of that intended benefit that I find was validly expressed when originally made (in 2000). The alterations were not made with intent to revoke or invalidate those gifts. I would give no effect- positive or negative – to the alterations.

[32] I have also considered whether the fact that the 2000 will was expressed as an amendment to the 1967 will might have the effect of requiring me to conclude that the 2003 handwritten revocation of the 1967 will had the effect of revoking this will as well.

[33] Once again, I think ordinary rules of construction and common sense avoid this sort of logic trap. The 2003 revocation letter attached the 1967 will – and only the 1967 will – with the word “invalid” written across the pages. The 2000 will was neither referenced nor attached. The 2000 will refers to itself in the concluding paragraph as a will not a mere amendment and the 2000 will read as a whole entirely superceded the 1967 will (and its successor, the 1982 will).

[34] The manifest intent of the testator in sending the letter was to confirm what had already happened in fact and to retrieve the 1967 document because it was already invalid. The testator was seeking to tie up a loose end in Germany because the will had been deposed in a public registry.

[35] I find that the 2000 will was a validly made will and not merely a codicil to the 1967 will. It was not revoked in 2003. The alterations made to the 2000 will are not themselves valid but have not invalidated the bequests in question nor rendered the effect of the will in that regard no longer apparent.

[36] Lastly I turn to the 2009 document. While this document does not “dispose” of any property per se, its testamentary intention is as clear as can be. The testator directed that his daughter should not receive “a single euro from my estate”. What was the effect of this document?

[37] In my view, the document has one and only one effect. It operates as a codicil to the 2000 will.

[38] Disposing of no property, the 2009 document is not capable of operating as a stand-alone will. The July 15, 2000 will was then the only will outstanding. That will contained a single bequest in favour of Petra (the grant of the residue in paragraph 6 thereof). The only sensible construction of the 2009 document is that it amended the 2000 will by revoking paragraph 6 thereof, being the only bequest in favour of Petra. The document expresses clear and unambiguous testamentary intent and satisfies all of the requirements of s. 6 of the SLRA for a valid holograph will.

[39] Petra’s counsel suggests that I should find the 2009 codicil to be invalid as the product of a delusion of some kind. Petra denies having stolen the coins referenced in that document and notes that her father made her the beneficiary of his 2000 will long after the alleged theft occurred. Whether the belief of Mr. Kunz was well founded when he wrote the 2009 codicil, I have nowhere near the standard of evidence I would need to find that he was operating under a delusion that might negative the testamentary intent that is otherwise manifest in the 2009 document. There is in fact nothing but speculation offered. He may have had an operation in that time frame or he may not. That operation may or may not have impacted his mental state. I cannot give effect to such arguments.

[40] I find that the 2009 document was a valid codicil to the 2000 will and that the only bequest in favour of Petra found in that will (being the bequest of the residue in paragraph 6) was revoked in consequence.

[41] The effect of these finding leads inexorably to an intestacy in respect of the residue. The 2000 will contains a number of specific bequests in favour of the Eissmann family totaling €156,000. I am advised that, subject to what becomes of some possible claims against the estate, there may be a rather substantial residue after those bequests are paid.

[42] The Eissmann applicants argued forcefully that I ought to find that they should inherit the residue. To hold otherwise they submit would be to defeat the evident intent of the testator to disinherit his daughter as expressed in the 2009 codicil.

[43] The submission misses the mark. Part 1 of the SLRA concerns the intention of the testator as expressed through a will. Ontario law recognizes the prima facie right of everyone to dispose of their property by way of will. That right is subject to some limitations of course – obligations must be discharged whether they be to creditors, fiscal authorities or dependants and spouses. An intestacy arises when the will fails to dispose fully of the entire estate that arises upon death. That is the case here.

[44] Where there is an intestacy as to all or any part of the property of the deceased, the intention of the testator simply does not enter into the picture. Intestacy arises when such of the expressed intentions of the testator as can lawfully be carried out have been exhausted. At that point, Part II of the SLRA steps in and prescribes the distribution of the remaining property. It does so without regard to the intention of the testator having regard only to objective criteria.

[45] What Part II of the SLRA does not do is recognize or give effect to the status of “disinherited”.

[46] The Legislature has provided a hierarchy of claims and has done so in mandatory language. Section 47(1) provides that where a person dies intestate of property and leaves issue surviving, “the property shall be distributed, subject to the rights of the spouse, if any, equally among his or her issue”. There is no exception for disinherited issue. Mr. Walker’s passionate assertions that this cannot be just or equitable unfortunately amount to a plea that “there ought to be a law”. There isn’t.

[47] I find that Petra is the only issue of the testator and is entitled to the application of s. 47(1) of the SLRA notwithstanding the intentions of the testator as expressed in the 2009 codicil.

Disposition

[48] I therefore declare that:

a. The 2000 will is a valid holograph will that has not been revoked;

b. The handwritten alterations to the specific bequests made therein are not valid alterations pursuant to s. 18(2) of the SLRA and cannot be given effect to pursuant to s. 18(1) of the SLRA;

c. The handwritten alterations have not had the effect of invalidating or rendering no longer apparent the original written provisions of the 2000 will that are still legible (Ruth: €40,000; each nephew €30,000; each nephew’s wife €3,000 and each grandchild €2,000);

d. The 2009 document is a valid codicil to the 2000 will and revoked paragraph 6 of 2000 will designating Petra as the beneficiary of the residue of the estate;

e. As so amended, the 2000 will contains no disposition of the residue;

f. All prior wills have been revoked save the 2000 will as amended by the 2009 codicil with the result that there is an intestacy as to the residue of the estate following the payment of debts and the satisfaction of the specific bequests mentioned in the 2000 will;

g. The intestacy falls to be determined by s. 47(1) of the SLRA. There being no spouse and only one child (Petra), Petra is the sole heir of the residue.

[49] The parties have indicated their intention to amend the application in due course to request the appointment of two administrators (one on behalf of the Eissmann family and one on behalf of Petra). There will be details to iron out. There will be issues relating to a possible creditor of the estate who has surfaced as well as some potentially complex tax issues in Germany to consider.

[50] The balance of the application is adjourned to be spoken to at a 9:30 scheduling appointment that may be brought back on 7 days’ notice (or sooner if urgent). I shall reserve the matter of costs of this motion for directions to be spoken to when the application is scheduled.

[51] Order accordingly.

S.F. Dunphy J.

Date: June 12, 2018

[^1]: Petra Kuntz carries her husband’s family name that is coincidentally similar to her birth name of “Kunz”. [^2]: Rico passed away after the death of his great-uncle.